The last few weeks have witnessed a remarkable convergence of
conflicts over copyright: the arrest of Megaupload mastermind
"Kim Dotcom" in New Zealand, an unprecedented show of unity
among Internet giants such as Wikipedia and Google to fight
anti-piracy legislation in Congress, and similar protests in
Poland against new copyright measures. In a world wracked by
recession, war and revolution, a topic oft-dismissed by
journalists as "arcane" - copyright - has surged to the top
of the political agenda.

Indeed, supporters of anti-piracy legislation in Congress
have confessed their ignorance of how copyright and the
Internet work, saying the details were best left to the
"nerds." Lawmakers soon heard from the nerds, though, as an
online insurgency spread to thwart the Stop Online Piracy
Act, galvanizing opposition across the political spectrum in
a novel way, from the Creative Commons left to right-wing
blogs such as RedState. The campaign epitomizes a promising
new turn in American politics, as critics of intellectual
property law finally find an audience and, more important,
the makings of a political constituency.

It was not always so, to say the least. Advocates of stronger
copyright won an almost unbroken string of legislative and
political triumphs since the early 1970s. A burst of piracy
in the late 1960s, stimulated by the ease of recording on
magnetic tape and the appearance of bootlegs of Bob Dylan and
the Beatles, prompted Congress to extend protection to sound
recordings in 1971. Thus began a continual expansion of the
powers of copyright, with the term of protection extended
from a maximum of 56 years to the life of the author plus 50
years in 1976, and another 20 years added in 1998.

Entertainment industries argued they needed protection. In a
deindustrializing economy, they were job creators, net
exporters of American goods. Disney reps in the early 1980s
warned Congress that movie piracy would undercut jobs and tax
revenue. With trademark bombast, Hollywood lobbyist Jack
Valenti declared in 1982, "We are going to bleed and bleed
and hemorrhage, unless this Congress at least protects one
industry that is able to retrieve a surplus of trade and
whose total future depends on its protection from the
savagery of this machine." (He was lobbying against the
dreaded VCR.)

Meanwhile, opponents of stronger copyright had little to
offer. Most were tape duplicators, who built their businesses
on copying records and making mixtapes. These "pirates" urged
Congress and state legislatures not to extend the length of
copyright or bolster the power of rights- holders, but
lawmakers paid them little attention.

Only with the rise of a new generation of copyright critics
in the 1990s did a credible resistance emerge. Academics such
as Lawrence Lessig, Kembrew McLeod and Siva Vaidhyanathan
pointed out how excessive copyright protections allow
corporate behemoths to push around small competitors while
stifling creativity, such as mashups and sampling in hip-hop.

At first, this critique remained limited to a small
constituency of tech activists, artists and academics. But
Duke law professor James Boyle offered a prescient diagnosis
of the movement's problems in 1997, when he urged an
"environmentalism for the net." Environmentalism became one
of America's most vital and broad-based new political
movements in the late 20th century, but its influence was
initially limited. Scientists and nature lovers worried about
environmental degradation, but they faced a difficult
challenge persuading others that individual issues - a dam in
a public park, suburban sprawl, pollution - were connected in
a way that demanded broad public concern. The idea of the
environment encompassed many issues that were different but
related.

Critics of copyright, Boyle suggested, needed to theorize
about the public domain in the same way nature lovers
conceptualized the environment. They needed a framework to
explain how intellectual property affected the people as a
whole, and not just the librarians, musicians or teachers who
might run up against the limits of copyright. For instance, a
handful of polluters might benefit richly from easing clean
air standards, while exposure to carcinogens hurts the
broader population in a diffuse and indirect way. Similarly,
lawmakers were reforming copyright law at the behest of those
who stood most to profit from it -- entertainment industries
-- but at the cost of impoverishing a public domain that most
people thought little about.

The last decade reveals how an anti-copyright movement
emerged along the lines laid out by Boyle. Efforts to curb
copying on the Internet sparked a new consciousness that
copyright was not merely an abstract or remote issue,
relevant only to lawyers and movie studios, but a palpable
everyday concern. The Recording Industry Association of
America stirred outrage by picking on 12- year-old girls and
college students for file-sharing, but such indignation only
pointed the way to a more comprehensive awareness of the
public domain.

The assertion of powerful resistance to SOPA may signal the
moment when a new American constituency begins to question
copyright. Members of Congress who are normally happy to give
Hollywood whatever it wants began to abandon the legislation,
as voters roared their opposition and sites such as Wikipedia
coordinated an effective blackout. Critics of SOPA succeeded
in changing the subject from property rights and stealing to
a discussion of sharing and freedom, reviving the old idea
that citizens had an interest in a vibrant and free public
sphere above and beyond protecting the profits of rights-
holders.

Why the (seemingly) sudden change? Wikipedia, no doubt,
offers a model of nonprofit public service and "peer
production" that stands in stark contrast with the self-
serving image of a pirate. "Imagine a world without free
knowledge," the site said, emphasizing the social good of
sharing information. And it cannot be stressed enough that
today's conflict over copyright has broken down as a battle
between different sectors of big business, with Google and
Facebook squaring off against companies like Disney, which
favor the strongest possible property rights. The tech-vs.-
content divide makes this struggle different from earlier
legislative fights, when opponents of pro- copyright measures
had few friends with deep pockets.

Where the debate goes from here is hard to say, but the broad
alliance between academics, bloggers, big tech and everyday
Internet users has already achieved an unprecedented victory
by rolling back proposed anti- piracy laws. The recent arrest
of Megaupload's Kim Dotcom, however, threatens to complicate
the picture. With his flashy cars and lavish lifestyle,
Dotcom represents perhaps the worst-case scenario for free
information - a handful of individuals getting ridiculously
rich off other people's work. In fact, he may resemble too
closely the older image of the sleazy record execs who lived
the high life by exploiting artists. This is certainly not
the image that advocates of sharing and free expression want
as their poster child.

For such an anti-copyright movement to succeed, though, the
focus must remain on free speech, not on the profits of
Disney or Dotcom. Free culture could just be a case of "new
boss, same as the old boss," if a new breed of middlemen at
file-sharing sites were able to profit from trafficking in
other people's work. Sharing is one thing, but when money
changes hands it is quite another; few people think that
inserting a photo of Richard Nixon or Newt Gingrich into my
blog post is hurting anyone, since the original photographer
or website that hosted the image is no worse off, and I am
not trying to make money by blogging. Fair use may protect
such practices, though that protection is by no means certain
-- copyright trolls such as Righthaven enjoy a brisk business
threatening websites with infringement lawsuits in order to
force them into out-of-court settlements. The anti-copyright
movement must fight to preserve the zone of noncommercial
copying and sharing that fair use is meant to protect from
such attacks.

It must also offer solutions. There must be a way of
reconciling practices such as sampling and file-sharing with
copyright law that is not solely designed to enhance the
power of rights-holders. Creative Commons already offers
licenses that creators can use to selectively permit copying
and sharing of their work, while YouTube has developed a kind
of "opt out" model that removes copyrighted material when
rights-holders object (but still hosts a vast number of
unlicensed TV clips, concert recordings, and so on).

American history also offers guidance for policy. For
instance, Congress forged a novel compromise between
songwriters and record companies when it considered how to
regulate sound recording in 1909. Composers and music
publishers wanted to license their songs individually,
charging whatever the market would bear, while labels wanted
a free supply of songs to record on piano rolls, wax
cylinders and discs. The solution -- known as a compulsory
license -- balanced both interests by making record companies
pay composers a flat royalty for each copy (i.e., recording)
of a song they produced. Thus, performers and labels could
choose whatever songs they wished to record without the
burden of negotiating a price for each song individually, and
composers were ensured an income from the sale and enjoyment
of their works.

Lawrence Lessig and others have called for a similar
compromise for file-sharing. In this way, we could look at
file-hosting services such as Megaupload and Rapidshare as a
kind of radio. DJs do not have to call up Moon Unit to get
permission every time they want to air a Frank Zappa song;
instead, they pay for blanket licenses from composers'
organizations such as ASCAP and play whatever they like.
Likewise, file-hosting services could negotiate a formula to
compensate for the copyrighted content users upload and
download. Such an arrangement would raise issues of privacy
and fairness, but a blanket license scheme offers one
possible way for Internet users to go on freely sharing and
creators to be paid.

Critics such as Boyle and Lessig have never been truly anti-
copyright; they simply believe the law has become too skewed
in favor of rights-holders. In the 1970s, for instance,
record industry lobbyists rejected a compulsory license for
recordings, which could have set a flat price for using
copyrighted sounds in mixtapes and samples. The result was a
process for obtaining permissions that is so cumbersome and
costly that many musicians choose not to use samples. With an
eye toward innovation and compromise, we could create a
system that facilitates sharing, copying and free exchange
without shortchanging artists or surrendering to the
interests of big business. A new movement must sustain a
vision of sharing that serves the public good if it is to
succeed in changing the conversation about copyright.
Thwarting quick passage of SOPA was just a start.

[Alex Sayf Cummings is assistant professor of History at
Georgia State University. His book on music piracy and
intellectual property law is forthcoming from Oxford
University Press, and he is a co-editor of the blog Tropics
of Meta.]

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